KNAPPEN, Circuit Judge.
Suit was brought on behalf of Merle J. White, whom we shall call plaintiff, to recover for injuries received under these circumstances: Plaintiff, who was about 19 years old, was driving a horse attached to a delivery wagon. As he approached defendant’s tracks in Salem, Ohio, the gates on each side of the track were up, and White saw the watchman in his shanty near the gates. While he was driving across the tracks the gates were closed on each side, thus effectively hemming the horse, wagon, and driver between the gates. While in this predicament the wagon was struck by defendant’s railway engine, the horse killed, and both the wagon and horse thrown a great distance. Plaintiff was either thrown by the impact of the engine with the wagon, or practically at the instant before the impact jumped, alighting on his hands and knees upon the brick pavement, 14 or 15 feet beyond the gate. Verdict and judgment were rendered for plaintiff. But two alleged errors are relied upon for reversal.
[1] 1. Defendant contended that the accident was due to plaintiff’s negligence. In tire course of the charge to the jury the trial judge used this language:
“When guard gates at a street crossing are up, and the man to operate them is known to be present, they constitute an implied notice that no train is approaching and that the traveler may safely cross; and therefore all the care that he was obliged to exercise under these conditions was such care as men of ordinary prudence, approaching a railroad crossing, and seeing the gates up, and seeing the gateman, whose duty it was to lower them when trains approach, was at his post of duty, would customarily exercise under such conditions.”
It is recognized by decisions of this court that the open gate is in the nature of or analogous to an invitation to the traveler to cross, but that it is still incumbent upon him to exercise his senses of sight and hearing for his protection as soon as, and as far as, a man of ordinary prudence would do under similar circumstances. Blount v. Gd. Trunk Ry. Co., 61 Fed. 375, 9 C. C. A. 526; Erie R. R. Co. v. Schultz, 183 Fed. 673, 675, 106 C. C. A. 23. The instruction in question is complained of as relieving the plaintiff from all duty to exercise care in his own behalf, and as placing the entire duty of care bn defend[439]*439ant. We are unable to accept this construction of the charge. We think it apparent, from even so much of it as we have quoted, that the court left to the jury the question whether, under all the circumstances, plaintiff was guilty of negligence contributing to the accident. Reference to other paragraphs of the charge immediately following the paragraph quoted relieves the question of all doubt.1 There was no error in the instruction.
[2] 2. Defendant contends that there was evidence that plaintiff sustained no real injury aside from fright, and complains of the refusal of the following request to charge:
“I will say to you asi a matter of law that the plaintiff is not entitled to recover damages tor mere fright. In order for him to recover, he must show some real and actual Injury, aside from flight alone.”
It is the general rule that recovery cannot ordinarily be had in case of merely negligent omission of duty (that is to say, not malicious or intentional) for mental suffering not connected with or accompanied by physical injury or direct interference with the plaintiff’s person, as illustrated by several cases relied on by defendant and cited in the margin.2 In neither of these cases was plaintiff’s person invaded.
[3] There is not wanting respectable authority that recovery may be had for injuries proximately occasioned by fright or shock due to defendant’s actionable negligence, although not attended by direct physi[440]*440cal invasion of the person. Stutz v. C. &. N. W. Ry. Co., 73 Wis. 147, 40 N. W. 653, 9 Am St. Rep. 769; Pankopf v. Hinkley, 141 Wis. 146, 123 N. W. 625, 24 L. R. A. (N. S.) 1159. And see Miller v. Railroad Co., supra, 78 Ohio St., at page 324, 85 N. E. 499, 18 L.R.A. (N. S.) 949, 125 Am. St. Rep. 699. But the rule is well established that when a defendant’s negligence causes physical injury to the plaintiff’s person, damages resulting from incidental fright may be recovered. Traction Co. v. Rambertson, 59 N. J. Law, 297, 36 Atl. 100; Warren v. Boston & Maine R. R. Co., 163 Mass. 484, 40 N. E. 895; Denver & R. G. R. R. Co. v. Roller (C. C. A. 9) 100 Fed. 738, 41 C. C. A. 22, 49 L. R. A. 77; and see Pankopf v. Hinkley, supra.
[4, 5] There was testimony tending to show that plaintiff received actual physical injuries continuing to a greater or less extent up to the time of the trial (which was about a year and one-half after the accident) and tending to show more or less permanent impairment of health, particularly by way of a general nervous condition, manifested by halting and stammering speech, impaired ability to sleep, and loss of flesh. Defendant’s testimony tended to show that plaintiff was not seriously injured, and that at least before the trial he had entirely recovered from the results of the accident; and if there was testimony reasonably tending to show that plaintiff received not even a temporary physical injury, the refusal of defendant’s request would present important and perhaps serious questions.3 But we think the testimony was such that the jury could not, without perverseness, fail to find that plaintiff received some physical injury as the result of the accident. There was express and uncontroverted testimony that plaintiff, after a long flight through the air, either alighted upon his hands and knees upon the brick pavement, or, as expressed by one of defendant’s witnesses, alighted upon his feet and “went down on” one of his knees; that one of his hands was more or less bruised and cut; that he was helped up from the ground, either immediately following the fall, or after he had gone a short distance and lain down, and was assisted, weeping, into a factory near the crossing. It was undisputed (unless by the testimony of defendant’s conductor, to the effect that while in the factory, immediately following the accident, in reply to the conductor’s inquiry whether he was injured plaintiff said, “No, I am' not hurt”) that for a time at least one of plaintiff’s knees was lame and that for a time he was unable to do his usual labor.' Whether he jumped from the wagon just before the collision, or was thrown by the impact of the engine, is not important, for the testimony, in its aspect most favorable to defendant, makes it clear that plaintiff left the wagon but a few seconds, at the most, before the collision and because collision was immediately impending. Even if the sole physical injury resulted from an attempt to escape from actual danger, damages are recoverable for impairment of health occasioned by the consequent fright. Traction Co. v. Lambertson, supra, 59 N. J. Law, at page 302, 36 Atl. 100; Bu[441]*441chanan v. West New Jersey R. R. Co., 52 N. J. Law, 265, 19 Atl. 254; Armour & Co. v. Kollmeyer (C. C. A. 8) 161 Fed. 78, 88 C. C. A. 242, 16 L. R. A. (N. S.) 1110. In fact, had plaintiff not jumped, serious (perhaps fatal) injury was inevitable. Indeed, plaintiff could scarcely either have jumped or been thrown the distance stated, alighting as he did, without more or less immediate shock (perhaps only temporary) to his physical and nervous system.
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KNAPPEN, Circuit Judge.
Suit was brought on behalf of Merle J. White, whom we shall call plaintiff, to recover for injuries received under these circumstances: Plaintiff, who was about 19 years old, was driving a horse attached to a delivery wagon. As he approached defendant’s tracks in Salem, Ohio, the gates on each side of the track were up, and White saw the watchman in his shanty near the gates. While he was driving across the tracks the gates were closed on each side, thus effectively hemming the horse, wagon, and driver between the gates. While in this predicament the wagon was struck by defendant’s railway engine, the horse killed, and both the wagon and horse thrown a great distance. Plaintiff was either thrown by the impact of the engine with the wagon, or practically at the instant before the impact jumped, alighting on his hands and knees upon the brick pavement, 14 or 15 feet beyond the gate. Verdict and judgment were rendered for plaintiff. But two alleged errors are relied upon for reversal.
[1] 1. Defendant contended that the accident was due to plaintiff’s negligence. In tire course of the charge to the jury the trial judge used this language:
“When guard gates at a street crossing are up, and the man to operate them is known to be present, they constitute an implied notice that no train is approaching and that the traveler may safely cross; and therefore all the care that he was obliged to exercise under these conditions was such care as men of ordinary prudence, approaching a railroad crossing, and seeing the gates up, and seeing the gateman, whose duty it was to lower them when trains approach, was at his post of duty, would customarily exercise under such conditions.”
It is recognized by decisions of this court that the open gate is in the nature of or analogous to an invitation to the traveler to cross, but that it is still incumbent upon him to exercise his senses of sight and hearing for his protection as soon as, and as far as, a man of ordinary prudence would do under similar circumstances. Blount v. Gd. Trunk Ry. Co., 61 Fed. 375, 9 C. C. A. 526; Erie R. R. Co. v. Schultz, 183 Fed. 673, 675, 106 C. C. A. 23. The instruction in question is complained of as relieving the plaintiff from all duty to exercise care in his own behalf, and as placing the entire duty of care bn defend[439]*439ant. We are unable to accept this construction of the charge. We think it apparent, from even so much of it as we have quoted, that the court left to the jury the question whether, under all the circumstances, plaintiff was guilty of negligence contributing to the accident. Reference to other paragraphs of the charge immediately following the paragraph quoted relieves the question of all doubt.1 There was no error in the instruction.
[2] 2. Defendant contends that there was evidence that plaintiff sustained no real injury aside from fright, and complains of the refusal of the following request to charge:
“I will say to you asi a matter of law that the plaintiff is not entitled to recover damages tor mere fright. In order for him to recover, he must show some real and actual Injury, aside from flight alone.”
It is the general rule that recovery cannot ordinarily be had in case of merely negligent omission of duty (that is to say, not malicious or intentional) for mental suffering not connected with or accompanied by physical injury or direct interference with the plaintiff’s person, as illustrated by several cases relied on by defendant and cited in the margin.2 In neither of these cases was plaintiff’s person invaded.
[3] There is not wanting respectable authority that recovery may be had for injuries proximately occasioned by fright or shock due to defendant’s actionable negligence, although not attended by direct physi[440]*440cal invasion of the person. Stutz v. C. &. N. W. Ry. Co., 73 Wis. 147, 40 N. W. 653, 9 Am St. Rep. 769; Pankopf v. Hinkley, 141 Wis. 146, 123 N. W. 625, 24 L. R. A. (N. S.) 1159. And see Miller v. Railroad Co., supra, 78 Ohio St., at page 324, 85 N. E. 499, 18 L.R.A. (N. S.) 949, 125 Am. St. Rep. 699. But the rule is well established that when a defendant’s negligence causes physical injury to the plaintiff’s person, damages resulting from incidental fright may be recovered. Traction Co. v. Rambertson, 59 N. J. Law, 297, 36 Atl. 100; Warren v. Boston & Maine R. R. Co., 163 Mass. 484, 40 N. E. 895; Denver & R. G. R. R. Co. v. Roller (C. C. A. 9) 100 Fed. 738, 41 C. C. A. 22, 49 L. R. A. 77; and see Pankopf v. Hinkley, supra.
[4, 5] There was testimony tending to show that plaintiff received actual physical injuries continuing to a greater or less extent up to the time of the trial (which was about a year and one-half after the accident) and tending to show more or less permanent impairment of health, particularly by way of a general nervous condition, manifested by halting and stammering speech, impaired ability to sleep, and loss of flesh. Defendant’s testimony tended to show that plaintiff was not seriously injured, and that at least before the trial he had entirely recovered from the results of the accident; and if there was testimony reasonably tending to show that plaintiff received not even a temporary physical injury, the refusal of defendant’s request would present important and perhaps serious questions.3 But we think the testimony was such that the jury could not, without perverseness, fail to find that plaintiff received some physical injury as the result of the accident. There was express and uncontroverted testimony that plaintiff, after a long flight through the air, either alighted upon his hands and knees upon the brick pavement, or, as expressed by one of defendant’s witnesses, alighted upon his feet and “went down on” one of his knees; that one of his hands was more or less bruised and cut; that he was helped up from the ground, either immediately following the fall, or after he had gone a short distance and lain down, and was assisted, weeping, into a factory near the crossing. It was undisputed (unless by the testimony of defendant’s conductor, to the effect that while in the factory, immediately following the accident, in reply to the conductor’s inquiry whether he was injured plaintiff said, “No, I am' not hurt”) that for a time at least one of plaintiff’s knees was lame and that for a time he was unable to do his usual labor.' Whether he jumped from the wagon just before the collision, or was thrown by the impact of the engine, is not important, for the testimony, in its aspect most favorable to defendant, makes it clear that plaintiff left the wagon but a few seconds, at the most, before the collision and because collision was immediately impending. Even if the sole physical injury resulted from an attempt to escape from actual danger, damages are recoverable for impairment of health occasioned by the consequent fright. Traction Co. v. Lambertson, supra, 59 N. J. Law, at page 302, 36 Atl. 100; Bu[441]*441chanan v. West New Jersey R. R. Co., 52 N. J. Law, 265, 19 Atl. 254; Armour & Co. v. Kollmeyer (C. C. A. 8) 161 Fed. 78, 88 C. C. A. 242, 16 L. R. A. (N. S.) 1110. In fact, had plaintiff not jumped, serious (perhaps fatal) injury was inevitable. Indeed, plaintiff could scarcely either have jumped or been thrown the distance stated, alighting as he did, without more or less immediate shock (perhaps only temporary) to his physical and nervous system. In the Rambertson Case, supra, it was held that an actual injury was done to the plaintiff personally, entitling to recovery for damages for fright, where the wagon in which he was riding was, while crossing a railroad track, struck by defendant’s car and carried along by it for some distance before it was stopped. In the Warren Case, supra, the wagon in which plaintiff was riding, while caught between gates under conditions similar to those existing here, was struck by the train and plaintiff was thrown or jumped out. It was said (163 Mass. p. 487, 40 N. E. 896):
“It is a physical injury to the person to be thrown, out of a wagon, or to be compelled to jump out, even although the harm done consists mainly of nervous shock.”
In Pankopf v. Hinkley, supra, recovery was permitted for severe fright or shock (resulting in miscarriage) due to the fact that án automobile was negligently steered into the horses attached to the carriage in which plaintiff was riding, whereby the carriage was pulled with such force and violence as to cause the fright and shock referred to.
[8] The rule permitting recovery for fright does not require that the direct physical injuries be permanent or severe. We think it plain that plaintiff had, under the evidence, and regardless of the fright, a right of action entitling him to some degree of recovery, provided, as the jury must have found, defendant was negligent and plaintiff free from negligence with respect to the accident. It is elementary that it is not error to refuse an instruction, although correctly stating an abstract proposition of law, if inapplicable to the facts of the case. We think the requested instruction was inapplicable. In the Warren and Roller Cases, supra, refusals of requests similar to that under consideration here were held not error.
We find no error in the respects complained of, and the judgment of the District Court is affirmed.